Peter W. Hall, Circuit Judge:
This appeal principally concerns whether two Monroe County Assistant District Attorneys, James Egan and Mark Monaghan ("the ADAs"), are absolutely immune from civil suit for interfering in the timing of Plaintiff-Appellee Seun Ogunkoya's arraignments in several town courts as the ADAs were preparing to present the charges to a grand jury. Ogunkoya alleged that the ADAs, along with other state and county defendants, violated his Fourth and Fourteenth Amendment rights by failing to timely arraign him on four of six identity fraud and larceny charges. Because the ADAs were performing a traditional prosecutorial function when they determined that they would initiate Ogunkoya's prosecution via grand jury indictment and thus delay his arraignment on separate individual charges, we reverse the District Court's denial of absolute immunity.
Regarding Monroe County's effort to appeal the denial of its motion to dismiss, because the claims against the county are not inextricably intertwined with the question of the ADAs' immunity, we are without jurisdiction to consider the County's appeal at this time.
Absolute immunity protects a prosecutor "not only from liability but also from suit." Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005). "Hence, an interlocutory order rejecting the defense [of absolute immunity] is immediately appealable under the collateral order doctrine." Id.
"When a district court denies immunity on a Rule 12(b)(6) motion to dismiss, `we review the district court's denial de novo, accepting as true the material facts alleged in the complaint and drawing all reasonable inferences in plaintiffs' favor.'" Warney v. Monroe Cty., 587 F.3d 113, 120 (2d Cir. 2009) (quoting Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir. 2001)).
The facts as alleged in Ogunkoya's complaint are as follows. The investigation leading to his arrest began when Home Depot reported several gift card purchases suspected to be fraudulent to the New York State Police ("NYSP"). The gift cards, totaling $28,000, were all acquired on April 26, 2014, at Home Depot stores in three Monroe County towns — Greece, Henrietta, and Irondequoit. NYSP Investigator Mark Eifert opened a criminal investigation and learned that Ogunkoya used his personal credit card for small purchases in the Greece and Henrietta stores around the same time as the gift cards were purchased. Eifert also reviewed Home Depot's surveillance tapes. Those tapes show someone other than Ogunkoya purchasing the gift cards. On January 20, 2015, Eifert prepared six felony complaints charging Ogunkoya with one count of identity theft and one count of grand larceny in each of the three towns.
A month later, acting on Eifert's knowledge and belief, but without an arrest warrant, the NYSP arrested Ogunkoya in his Brooklyn apartment. Over the course of the day, NYSP officers drove Ogunkoya to Monroe County, where he was brought for arraignment before the Henrietta Town Court around 10 P.M. The NYSP filed all six felony complaints with the Henrietta court, but the judge refused on jurisdictional grounds to arraign Ogunkoya on the four complaints based on conduct alleged to have occurred in Greece and Irondequoit. The judge instructed the NYSP to have Ogunkoya arraigned on the remaining complaints during the next business day, Monday, February 23, 2015.
Ogunkoya was never arraigned in Greece or Irondequoit. Instead, a bail hearing was held that Monday in Monroe County Court. At the hearing, Ogunkoya, who was planning to sit for the bar exam in New York City the following day, asked to be arraigned on the four remaining complaints "in time for a new bail application to be made on all the charges." J. App. 11. Considering Ogunkoya a "flight risk," the ADAs argued for a $100,000 cash/$300,000 bond bail "based on the combined allegations of the six felony complaints." Id. The judge set Ogunkoya's bail at $100,000 cash/$300,000 bond. As alleged by Ogunkoya, "[t]his amount of bail is unusually high considering the amount of the alleged thefts [] and local custom." Id.
Ogunkoya's family then sought to arrange for bail, but the bail bondsman "expressed reluctance at posting a bond" because of Ogunkoya's four outstanding criminal complaints on which he had not yet been arraigned. J. App. 12. Ogunkoya's counsel wrote to ADA Egan and again requested that Ogunkoya be arraigned on the four outstanding complaints so that he could secure bail. Egan responded by email:
Id.
Ogunkoya's counsel continued to press for arraignment, seeking a writ on the ground that "Ogunkoya was prepared to post a $300,000 bond but that the bail bondsman refused to post the bond solely because of the unarraigned charges." J. App. 13. On March 20th — 28 days after his arrest — Ogunkoya was released after a Monroe County Court judge signed his bond documents. On or about May 15, 2015, a Monroe County grand jury indicted Ogunkoya on three counts of identity theft, one count from each town. At trial, the jury acquitted Ogunkoya on all charges.
After his acquittal Ogunkoya, pro se, filed a § 1983 lawsuit naming the NYSP officers involved in his arrest, Monroe County DA Sandra Doorley,
The magistrate judge's Report and Recommendation ("R&R") construed the second amended complaint to plead the following claims against all the individual NYSP and Monroe County defendants: false arrest and false imprisonment, malicious prosecution, failure to arraign, and related claims for failure to intervene with respect to each of the preceding claims. The R&R also construed Ogunkoya's complaint to assert a Monell municipal liability claim against Monroe County, alleging an unconstitutional practice or custom and failure to train its officers. The magistrate judge recommended that all claims against the NYSP defendants proceed except the claims alleging malicious prosecution, failure to intervene in plaintiff's prosecution, and failure to intervene in plaintiff's arraignment on the part of the arresting officers in Brooklyn.
With respect to the ADAs, the magistrate judge recommended that the false arrest, malicious prosecution, and related failure to intervene claims be dismissed. The magistrate judge recommended that the failure to arraign and related failure to intervene claims proceed against the ADAs. In so doing, the magistrate judge ruled that the ADAs were not entitled to absolute immunity for their roles in the events underlying Ogunkoya's failure to arraign claims.
In addition, the magistrate judge recommended that all claims against DA Doorley be dismissed because she lacked personal
The district judge adopted the R&R. This appeal followed.
Absolute immunity bars § 1983 suits against prosecutors for their role "in initiating a prosecution and in presenting the State's case." Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Instead of relying on strict categories of actions with respect to which absolute immunity attaches, the relevant question is "whether there is pending or in preparation a court proceeding in which the prosecutor acts as an advocate." Warney, 587 F.3d at 123. Ultimately, we ask "whether a reasonable prosecutor would view the acts challenged by the complaint as reasonably within the functions of a prosecutor." Giraldo v. Kessler, 694 F.3d 161, 166 (2d Cir. 2012).
The ADAs' decision to prosecute Ogunkoya and proceed by grand jury indictment rather than proceed on separate criminal complaints is a prosecutorial exercise of discretion entitled to absolute immunity. See Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) (quoting Imbler, 424 U.S. at 430-31, 96 S.Ct. 984) (holding that "[p]rosecutors are absolutely immune ... for their conduct in `initiating a prosecution'"). What we must decide is whether the ADAs are entitled to absolute immunity when they directed the NYSP not to have Ogunkoya arraigned in the Greece and Irondequoit town courts and informed those courts that Ogunkoya would not be arraigned.
In our view, the Supreme Court's pronouncement in Imbler squarely addresses the conduct of the ADAs at issue here. 424 U.S. at 430-31, 96 S.Ct. 984. The Court noted:
Id. at 431 n.33, 96 S.Ct. 984.
The District Court erred in denying the ADAs absolute immunity. The District Court found that "`a reasonable prosecutor' would conclude that the Greece and Irondequoit arraignments were a police, not a prosecutorial, responsibility." J. App. 113. We disagree. It is true that, in New York, the responsibility for presenting a detained person before a court for evaluation of the legality of his or her detention is generally a police responsibility. See N.Y. Crim. Proc. Law § 140.20(1) (McKinney) ("Upon arresting a person without a warrant, a police officer ... must ... without unnecessary delay bring the arrested person or cause him to be brought before a local criminal court and file therewith an appropriate accusatory instrument charging him with the offense or offenses in question.") (emphasis added). When a police officer arrests a person without a warrant, the officer is constitutionally obliged to present the arrestee before a judicial officer for a determination of probable cause. See Gerstein v. Pugh, 420 U.S. 103, 113-14, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). That is necessarily an
The analysis this Court undertook in Warney is helpful to our analysis here. In Warney, we recognized that prosecutors who are alleged to have not timely disclosed exculpatory DNA evidence obtained during habeas proceedings are entitled to absolute immunity. Id. at 115-21, 125. We concluded that classifying the steps that the prosecutors took — testing and delaying disclosure of DNA evidence, and identifying the real killer — was impossible "with[out] reference to context." Id. at 123. Inculpatory results would aid advocacy; exculpatory results could give rise to an administrative burden to effect disclosure; results inculpating another would support initiation of a new investigation. We held that regardless of the test results, all the steps that the Warney prosecutors took "were integral to and subsumed in the advocacy functions being performed in connection with Warney's post-conviction initiatives." Id.
Our decision in Warney follows the Supreme Court's instruction in Van de Kamp v. Goldstein, 555 U.S. 335, 344, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009), that absolute immunity covers administrative acts "directly connected with the conduct of a trial." The Court explained:
Id. In Warney, "[j]ust as the administrative act in Goldstein was integral to an advocacy function," the potentially administrative or investigative acts "were also integral to the overarching advocacy function." 587 F.3d at 124.
Here, the ADAs' direction that Ogunkoya not be arraigned in Greece and Irondequoit cannot be understood without reference to their decision to proceed by grand jury indictment on the three sets of charges together. Viewed as a set of discrete acts, the ADAs' interference in
The decision to initiate prosecution, what charges to bring, and how to perfect and consolidate those charges is a quintessential prosecutorial function. See Imbler, 424 U.S. at 431, 96 S.Ct. 984; Ying Jing Gan v. City of New York, 996 F.2d 522, 530 (2d Cir. 1993) ("A prosecutor ... has absolute immunity in connection with the decision whether or not to commence a prosecution."). The ADAs were not only participating in Ogunkoya's arraignment on the Henrietta charges but preparing to prosecute him on what they were informed were multiple charges in two other towns as well. Exercising their "related discretion," the ADAs decided to initiate prosecution of Ogunkoya in the two other towns, and ultimately to pursue all three sets of charges, by grand jury indictment rather than have three separate criminal actions proceed under the six felony complaints. Goldstein, 555 U.S. at 344, 129 S.Ct. 855. The ADAs directed that Ogunkoya's arraignment in Greece and Henrietta not occur in order to control how the state's criminal case would proceed.
So, while the District Court was correct that in New York state arraignment is generally a police function, its analysis failed to consider that a court proceeding was in preparation, Warney, 587 F.3d at 123, and that the ADAs' participation in the act of scheduling arraignments on the multiple charges that were to be consolidated in a single indictment was "directly connected with the conduct of a trial" and "require[d] legal knowledge and the exercise of related discretion." Goldstein, 555 U.S. at 344, 129 S.Ct. 855. As the ADA explained in his email to Ogunkoya's counsel, Ogunkoya had already been arraigned on the Henrietta charges and was being detained on that basis. Further arraignments on the Greece and Irondequoit charges were not necessary for him to continue to be held pursuant to the Henrietta arraignment and on terms set by the Henrietta court.
Simon was not detained for a trial, but merely held in the course of a criminal investigation, for which no judicial proceedings were scheduled. Simon, 727 F.3d at 169, 174. The prosecutor's acts were not "subsumed [with]in the advocacy function" related to a pending court proceeding in the nature of a criminal prosecution. Warney, 587 F.3d at 123. We noted as much at the time. Simon, 727 F.3d at 174 (explaining, "[t]hat Simon might eventually have been called to testify in a judicial proceeding does not make her detention a prosecutorial function") (citing Buckley v. Fitzsimmons, 509 U.S. 259, 275-76, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993)). It was clear, given the context and timing of the Simon prosecutor's acts in question, that the prosecutor was involved in an investigation, not in advocacy related to the initiation and prosecution of criminal charges. Id. Indeed, as we pointed out there, the prosecutor in Simon was "actively avoiding the court-ordered material witness hearing"; his acts ensured that the plaintiff "had no way of contesting her detention." Id. at 173. In this case, in contrast, it is immaterial that the ADAs may have interfered with a police function because the overarching reason for their directing the arraignments in town courts to not occur was not related to Ogunkoya's warrantless arrest, but rather constituted an exercise of their prosecutorial discretion in preparing a case for indictment and deciding when, where, and how to prosecute. The separation of the two functions is highlighted further by the observation that once his bond documents for the Henrietta charge alone were signed, he was released, despite his still not having been arraigned on the Greece and Irondequoit charges. For these reasons, we hold that the ADAs have absolute immunity and the claims against them must be dismissed.
Monroe County appeals from the District Court's denial of its motion to dismiss Ogunkoya's Monell municipal liability and failure-to-train claims. Although the order denying absolute immunity is "immediately appealable under the collateral order doctrine," Shmueli, 424 F.3d at 236, pendent appellate jurisdiction is only appropriate where an issue is "inextricably intertwined" with the other issues on appeal giving rise to the appellate court's jurisdiction or is necessary to ensure "meaningful review" of those issues. Warney, 587 F.3d at 126 (internal quotation marks omitted). Our decision here is guided, if not mandated, by the previous decision of this Court in Warney. There we held:
For the foregoing reasons, the order of the District Court insofar as it denied absolute immunity to the ADAs is reversed, and this case is remanded for further proceedings consistent with this opinion.